Macon Place

The Missouri Supreme Court ordered a suspension without reinstatement for at least two years for a former  judge's misconduct in an unsuccessful reelection campaign in Macon County

A reprimand was imposed on these charges in November 2015

The misconduct stemmed from four counts: (1) engaging in a text message exchange with a candidate for circuit clerk that threatened Prewitt’s involvement in the circuit clerk’s campaign if she did not remove his opponent’s signs from her yard; (2) maintaining a Facebook account identifying Prewitt as an associate circuit judge through which he made 11 postings encouraging others to attend certain charitable events or make donations to certain charities; (3) criticizing other judges in a Facebook post by stating “unlike many other judges, I am very open about decisions I make in cases because I am proud of the work I do”; and (4) questioning a prosecutor during an arraignment about the strength of a case, advising that he did not want to unnecessarily prevent the defendant from playing football and that the prosecutor should dispose of the case.

The present charges

The current information OCDC filed against Prewitt contains two counts that remain before this Court. Both counts relate to Prewitt’s campaign for associate circuit judge against Burks in the course of the 2018 election. One count encompasses threats made to Burks. The other involves Prewitt’s speech at a campaign event. Prior events and interactions between Prewitt and Burks set the context for this Court’s findings.

Prewitt and Burks previously opposed each other in the 2014 election for associate circuit judge. Prewitt, the incumbent, ran as a Republican. Burks ran as a Democrat. Directly before the election, Burks sent out a mailer disputing several of Prewitt’s campaign claims. The top of the mailer stated: “PREWITT…WORKING TO MISLEAD VOTERS.” Prewitt defeated Burks in the election.

Burks intended to run in 2018; the opponents had an encounter

The details of the encounter are in dispute. According to Burks, Prewitt inquired whether she intended to run against him in the election. Burks responded she was still undecided. Prewitt purportedly stated, if she were to run against him that he would file an ethics complaint premised on the mailer sent before the 2014 election and that he knew about Burks’ husband’s conduct. Prewitt denies making any statement beyond asking Burks about her intention to run.

While it was not publicly known, Burks' husband had strayed

At some point prior to the 2018 election, at a prayer event on the grounds of the local courthouse, Prewitt informed Pastor Bray that, if Burks were to run for the associate circuit judge position, it would cause a rift within the church. Pastor Bray was a friend of Burks’ husband. Prewitt provided Pastor Bray with details of Burks’ husband’s infidelity, noting the husband had broken up marriages in town. Pastor Bray relayed information about Prewitt’s comments to Burks’ husband. Prewitt, in his testimony before the disciplinary panel, confirmed it was possible he discussed the affairs with Pastor Bray in passing. When Burks learned of the conversation, she was upset Prewitt was interfering with her family’s church-related life.

There was evidence of Prewitt's discussions with others but nonetheless

Burks entered the 2018 election as an Independent candidate. She won the election and took office in January 2019. Prewitt did not follow through on publishing advertisements detailing the affairs of Burks’ husband or publicly stating Burks was supporting a predator. Prewitt could not unequivocally say he did not ever bring up the topic of Burks’ husband’s infidelity himself. He testified, “It was very surprising to a vast number of people given that she would be putting herself in the public eye.” He admitted one of the reasons he did not disseminate campaign information discussing the affairs was due to the complaint pending with the Judicial Commission.

Threats against Burks

Prewitt’s briefing acknowledges he “sought to dissuade [Burks] running for the office he held.” In accord with the panel, this Court finds Prewitt was doing more than warning his political opponent about topics that could emerge during the course of the campaign. Rather, Prewitt was attempting to coerce Burks into not running against him. First, he threatened that Burks’ filing would result in him filing an ethics complaint against her based on the previous campaign. Second, he threatened to give speeches and send out fliers in which he would call her husband a “predator.” Intertwined in this threat was Prewitt’s intention of making a point that Burks’ children, who were unaware of the affair, would be certain to learn of it.

A judge’s threat to file an ethics complaint against a lawyer, if and only if that lawyer decides to oppose him in an election, is impermissible.

In the discipline hearing

In his testimony before the panel, Prewitt refused to characterize as threats the prospect of sending out a flier labeling Burks’ husband as a “predator” and making known the information concerning the affairs. Prewitt believed Burks’ husband’s affairs to be relevant to Burks’ campaign because, if elected, Burks would oversee divorce cases and exercise her discretion in those cases. Even if this background information were relevant, a position merely assumed here, no legitimate purpose, other than to convince Burks to back out of the contest, can be discerned from Prewitt’s threat to ensure Burks’ children found out about the affairs. Prewitt responded he was “backed … into a corner” when Burks questioned whether he stated he would make sure her kids found out about their father’s extramarital relationships. Prewitt also did not deny characterizing the upcoming campaign as a “bloodbath.”

Prewitt's knowledge of an affair was a client confidence and not generally known

The extent of knowledge of the affair between Burks’ husband and BM is of relevance here. BM testified at Prewitt’s disciplinary hearing. Prewitt represented BM in her divorce, which was filed in 2009. BM testified she told a handful of friends about the affair but that “[n]ot everyone” in town or in Macon County knew about it. Several of OCDC’s witnesses answered questions about the extent of knowledge of the affairs. Pastor Bray was aware Burks’ husband had an affair before Prewitt approached him with the information. He learned of the information from his duties as a pastor, but he acknowledged he had also heard about it through the community. Olinger, the former police chief, did not hear the affairs discussed in 2018 by anyone other than Prewitt. He did not know about the affairs. In his experience as police chief, the affairs were not generally known in the community, although he admitted it would have been easily possible that others would have known about an affair even though he did not. Holman learned of the affairs sometime between 2013 to 2015. AL, one of the women with whom Burks’ husband had an affair, was the wife of a friend of Holman. Holman learned of the affair “just in passing around town” and confirmed it with his friend. He testified the affairs were not widely known in the Macon County community at first but “it got a little louder as the divorce [of BM] . . . started to take hold.” Meisner was aware Burks’ husband had one affair—the affair with AL. At some point before the 2014 election, Burks told Meisner her husband had been unfaithful. Meisner did not learn of the second affair—the affair with BM—until counsel for Prewitt took his deposition in this matter. According to Meisner, no one in the community was discussing the affairs.

Not "generally known"

While allowing that salacious details may travel quickly in a small town, as was often referenced in testimony, this Court does not find the information that BM engaged in an affair with Burks’ husband was generally known. It may be that rumors of an affair were generally known, and it could be the case that the affair with AL was generally known, but this Court finds from the record that the affair with BM was not generally known. The information was not widely recognized by members of the public in the relevant geographical area.

The court rejected the claim that the information was not confidential

Even if Prewitt discovered additional details of BM’s affair afterwards, in the course of their social engagements, use of these details would still have “relat[ed] to the representation” of BM and would have violated Rule 4-1.9(c).

Sanction

When mitigating and aggravating factors are weighed, the presumptive discipline of a suspension is not ameliorated. The abundance of factors in aggravation, in combination with the seriousness of the Rules violated and that the wrongdoer was a judge at the time of the transgressions, further moves this Court to impose a suspension...

For the foregoing reasons, this Court orders Prewitt be suspended indefinitely with no leave to apply for reinstatement for two years.

(Mike Frisch)